NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., et
745 F.3d 742
| 5th Cir. | 2014Background
- Kool Smiles operates dental clinics; M&B (a Texas law firm) ran ads and a website soliciting former Kool Smiles patients, accusing Kool Smiles of unnecessary/harmful procedures and Medicaid fraud.
- Kool Smiles sued in federal court under the Lanham Act (trademark infringement, false advertising, cyber-piracy) and state tort claims (defamation, business disparagement, etc.).
- M&B moved to dismiss under the Texas Citizen’s Participation Act (TCPA), an anti‑SLAPP statute; the district court denied the TCPA motion, finding (among other rulings) that M&B’s speech fell within the TCPA’s "commercial speech" exemption.
- M&B appealed only the denial of the TCPA motion; the Fifth Circuit considered whether it had interlocutory jurisdiction under the collateral order doctrine and whether the TCPA applies in federal court.
- The Fifth Circuit held it had jurisdiction to hear the interlocutory appeal, deemed Kool Smiles’ argument that the TCPA conflicts with certain federal rules waived, and affirmed the district court’s conclusion that M&B’s solicitations fit the TCPA commercial‑speech exemption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is this interlocutory appeal reviewable under the collateral order doctrine? | Kool Smiles: No, appeal not within immunity‑style collateral order category. | M&B: Yes; denial of anti‑SLAPP motion is immediately appealable. | Held: Yes — denial is conclusive, separable, and effectively unreviewable; collateral order doctrine supplies jurisdiction. |
| Does the TCPA apply in federal court or conflict with federal rules (FRCP/FRAP)? | Kool Smiles: TCPA conflicts with FRCP 12(d) and FRAP 4 so it doesn’t apply. | M&B: TCPA applies; Kool Smiles did not preserve conflict argument. | Held: Kool Smiles waived those specific federal‑rule conflicts by not raising them in district court; court assumes TCPA applies. |
| Does M&B’s speech fall within the TCPA’s "commercial speech" exemption? | Kool Smiles: The exemption does not apply; M&B’s statements should be protected by TCPA. | M&B: The ads solicit legal services to potential clients and thus are commercial speech exempting them from TCPA protection. | Held: Affirmed district court — M&B’s advertisements arose from sale of services to potential customers and fall within the commercial‑speech exemption; TCPA protections do not apply. |
| Standard for construing TCPA commercial‑speech exemption (how to decide)? | Kool Smiles: (implicit) narrow reading so protections apply. | M&B: Texas law should treat attorney solicitation as commercial speech when directed to potential clients. | Held: Applying Texas precedent and persuasive authorities, the Court predicts Texas Supreme Court would find attorney solicitations aimed at potential clients fit the exemption. |
Key Cases Cited
- Will v. Hallock, 546 U.S. 345 (collateral order doctrine standards)
- Henry v. Lake Charles Am. Press, 566 F.3d 164 (5th Cir.) (anti‑SLAPP denials as collateral orders)
- Batzel v. Smith, 333 F.3d 1018 (9th Cir.) (anti‑SLAPP purpose—avoid trial burdens)
- Simpson Strong‑Tie Co. v. Gore, 230 P.3d 1117 (Cal. 2010) (framework for commercial‑speech exemption analysis)
- Englert v. MacDonnell, 551 F.3d 1099 (9th Cir.) (when denial not immediately appealable)
- Metabolic Research, Inc. v. Ferrell, 693 F.3d 795 (9th Cir.) (statutory design informs availability of interlocutory appeal)
- Batzel v. Smith, 333 F.3d 1018 (9th Cir.) (importance of statutory interlocutory review to protect speakers from trial)
- Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (statutorily conferred immunity from suit has high-order value)